JUDGMENT OF THE COURT OF FIRST INSTANCE (Third Chamber)

9 March 2000

Case T-10/99

Miguel Vicente Nunez

v

Commission of the European Communities

‛Officials — Promotion — Examination of comparative merits — List of officials deemed the most deserving — List of officials promoted — Periodic report — Failure to state reasons’

Full text in French   II-203

Application for:

annulment of the list of officials promoted to Grade A 5 and the list of officials deemed the most deserving of promotion to that grade under the 1998 promotions procedure, in so far as those lists do not contain the applicant's name, and of the implied decision rejecting the applicant's complaint, and also for damages.

Held:

The decision of the Commission, confirmed by the implied decision rejecting the complaint, not to include the applicant's name on the list of officials promoted to Grade A 5 under the 1998 promotions procedure, published in Administrative notices of 6 April 1998, is annulled. The remainder of the application is dismissed. The Commission shall bear the costs.

Summary

1. Officials — Actions — Act adversely affecting an official — Concept — List of officials deemed most deserving — Preparatory act — Exclusion — Act open to challenge in an action for annulment of the promotion decision

   (Staff Regulations, Art. 90(2))

2. Officials — Actions — Act adversely affecting an official — Concept — Decision drawing up the list of officials promoted to Grade A 5 — Requirement, in order for the application to be admissible, that the official concerned has applied for a vacant post — None

   (Staff Regulations, Art. 90(2))

3. Officials — Promotion — Complaint by a candidate who has not been promoted — Decision rejecting the complaint — Statement of reasons — Scope — Complete absence of reasons — Regularisation during the pre-litigation procedure — Not permissible

   (Staff Regulations, Arts 25(2), 45 and 90(2))

1.  The regularity of the list drawn up by the appointing authority of officials most deserving of promotion outside the career bracket, like other preparatory acts in the course of the administrative procedure, may only be called into question indirectly in an action for annulment of the final decision concluding the promotion procedure.

   The drawing-up of that list is only one of the successive stages for selecting officials for promotion which culminates in a decision specifying the officials promoted. The list is a preparatory act which does not produce any definitive effect and is therefore not an act adversely affecting an official within the meaning of Article 90(2) of the Staff Regulations.

   (see paras 27 and 28)

   See: 346/87 Bossi v Commission [1989] ECR 303, paras 22 and 23; T-82/89 Marcato v Commission [1990] ECR II-735, para. 43; T-506/93 Moat v Commission [1995] ECRSC I-A-43 and II-147, para. 24

2.  The publication of the list of officials promoted to Grade A 5 in the Commission in a specific promotion procedure constitutes an act adversely affecting an official eligible for promotion to that grade whose name is not on the list. An application by such an official for annulment of the list in so far as it does not include his name cannot be dismissed as inadmissible on the ground that he failed to apply for one of the Grade A 5 posts declared vacant.

   (see paras 30 and 31)

3.  Although the appointing authority is not under an obligation to provide unsuccessful candidates with reasons for its decision on promotion, it is required, on the other hand, to provide a statement of grounds for its decision rejecting a complaint lodged by an applicant who was not promoted, the statement of grounds for such a decision being deemed to be the same as the statement of reasons for the decision against which the complaint was directed. As, under Article 45 of the Staff Regulations, promotion involves choices, it suffices that the statement of reasons for the rejection of the complaint deals with the satisfaction of the legal conditions which under the Staff Regulations determine the regularity of the promotion.

   The total absence of a statement of reasons before an action is brought cannot be remedied by explanations provided after the action has been initiated.

   (see paras 42 and 47)

   See: C-343/87 Culin v Commission [1990] ECR I-225, paras 13 and 15; T-52/90 Volger v Parliament [1992] ECR II-121, para. 40; C-115/92 P Parliament v Volger [1993] ECR I-6549, paras 22 and 23; T-178/95 and T-179/95 Picciolo and Caló v Committee for the Regions [1997] ECRSC I-A-51 and II-155, para. 34; T-6/96 Contargyris v Council [1997] ECRSC I-A-119 and II-357, paras 147 and 148; T-142/95 Delvaux v Commission [1997] ECRSC I-A-477 and II-1247, para. 84; T-283/97 Thinus v Commission [1999] ECRSC II-353, para. 75; T-157/98 Oliveira v Parliament [1999] ECRSC I-A-163 and II-851, para. 50